Toward a Shift from ”an Orientation to Acquisition and Property” to ”One of Care and Obligation”

The following text began as a book review, but by the time I finished writing, it had veered off in an entirely unintended direction. I cannot deny that it feels like a case of “a dragon’s head and a snake’s tail.” For now, I will leave it on my blog as a kind of memorandum.

[Book Review] Aritsune Katsuta, Seiichi Mori, Susumu Yamauchi (eds.), An Outline of Western Legal History (Minerva Shobo, 2004)
Original Title: 勝田有恒・森征一・山内進編『概説西洋法制史』2004年ミネルヴァ書房

This book should be considered essential reading for non-Western intellectuals. The reason is simple: the fact that today’s vast and complex societies are able to maintain a certain degree of order and function is largely thanks to the development of modern legal systems—systems that are undeniably historical resources constructed by Westerners.

Although the Japanese title is An Outline of Western Legal History, the book could well be described as a German-style Europäische Verfassungsgeschichte (European constitutional history) handbook.

In terms of academic lineage, the authors are legal and constitutional historians affiliated with Hitotsubashi and Keio Universities. The absence of contributors from the University of Tokyo or Kyoto University is striking. Still, rather than framing this in terms of institutional affiliations, it might be more accurate to say that the contributors are Japanese historians strongly influenced by Otto Brunner—one of the most important constitutional historians of the twentieth century. The text is well-balanced, the writing is lucid, and it serves as a highly useful reference tool for upper-level undergraduates and graduate students alike.

However, while the content is excellent, there is a conspicuous and unspoken omission: the legal history of Anglo-American law. England was the dominant power in the nineteenth century, and America the global superpower in the twentieth. Therefore, to write a legal history of these two centuries is essentially to describe the legal-historical resources of the Anglo-American legal tradition. In reality, the legal infrastructure of today’s advanced business society—intellectual property rights, for example—is led by American legal concepts and techniques. The securitization mechanisms seen in systems like carbon emissions trading are also quintessentially American in legal character.

The starting point of this legal imagination lies in Locke’s theory of natural rights as transplanted to the New World, and in the notion of property that evolved along that trajectory. Locke’s theory of natural rights, when applied to what was considered the boundless, unowned land of the New World (since white settlers did not recognize Native Americans’ property rights), found a powerful elective affinity (Die Wahlverwandtschaften) and gave rise to a particular form of individualism: individualism in acquisition and property.

In this context, the United States of America emerged—the first nation in human history to proudly proclaim itself unburdened by the weight of history—and the society that developed there became what we now call a Business Society. In this individualistic society, detached from any historical inheritance, talent, for instance, is regarded as personal property, and its value is defined by the price or income it commands on the open market. The worth of Shohei Ohtani, for example, is recognized and celebrated by Americans only once it is expressed in the form of a hundred-million-dollar figure—only then is his “talent” (i.e., property) held in reverence.

One of the most urgent challenges facing humanity today is the environmental crisis. At its root lies the American-born Business Society, undergirded by a form of individualism that is bundled with natural rights and the concept of property—namely, an individualism centered on acquisition and ownership. The global Americanization that accelerated in the latter half of the twentieth century played a decisive role in precipitating today’s environmental collapse. We have already moved beyond a world defined by competition over abundant resources. What is now essential is a framework for sharing substantively scarce resources—along with the legal and normative justifications that such a framework requires.

From the early modern period onward, Western Europe navigated the crises of the seventeenth century and built modern society by leveraging an individualism based on natural rights and property. But this same foundation, untempered by historical burden, ran rampant in the United States, which has long prided itself on having no “dark chapters” in its national history. Reversing this trajectory between the twenty-first and twenty-second centuries will require a shift in our normative orientation, and the development of new institutional and systemic forms to support it. Humanity now stands at a critical juncture: can we replace the expansionary individualism of acquisition and property with a more sustainable or steady-state individualism of care and obligation? Can we justify that new ethos and build systems that embody it?

If so, then the task of clarifying the historical process that brought us to this brink is one that Western legal history research must inevitably shoulder. In the postscript of this volume (p. 360), Susumu Yamauchi, speaking as the chief editor, offers an apologetic note regarding the lack of coverage on English legal history. In my view, however, even a final chapter dedicated to that theme would have been warranted. That said, the chapters on antiquity, the Middle Ages, and the early modern period are highly sophisticated and richly developed.

Aritsune Katsuta, Seiichi Mori, Susumu Yamauchi (eds.), An Outline of Western Legal History, Minerva Shobo, 2004, 372 pages
勝田有恒・森征一・山内進編『概説西洋法制史』2004年ミネルヴァ書房、372頁

Table of Contents
I. Law and Society in Ancient Europe
– The World of Roman Civil Law
– Classical Roman Jurists and Jurisprudence

II. Law and Society in Medieval Europe
– The Age of the Frankish Kingdom
– The Feudal Order, and more

III. Law and Society in Early Modern Europe
– The Reception of Roman Law
– The Birth of Modernity

IV. Law and Society in Modern and Contemporary Europe
– The Historical School of Law
– Pandectism and the Positivization of Private Law, and more

Publisher’s Note
This book, the first general overview of its kind in Japan, offers a careful account of the historical development of European law. While incorporating the latest research findings, it also includes a wealth of source materials, columns, and illustrations, making it accessible to beginners and specialists alike.

※See also (Japanese article),
「獲得と所有権」志向から「ケアと義務」志向への転換のために: 本に溺れたい